Friday, 31 August 2007

JACKSONVILLE, Florida: At all Florida lethal injections, a man in a purple moon suit leans over the dying inmate to listen for a heartbeat and feel for a pulse. After a few seconds, he nods, and the witnesses are informed that the death sentence has been duly carried out.

The man is a doctor and the gear shields his identity — not just from the prisoner's family and friends, but from the American Medical Association, whose code of ethics bars members from participating in executions.

Most states take steps to shield the identities of doctors taking part in executions. Some draw curtains or remove the witnesses before the doctor emerges.

But death penalty experts say Florida is the only state that uses a moon suit to preserve the doctor's anonymity.

The practice, employed for about a year, reflects the strong passions surrounding the role of physicians in executions, and the conflicting pressures that prison officials around the country are increasingly feeling.

On the one hand, prison systems are facing demands from judges that they make sure executions by injection do not cause undue pain. At the same time, states are having difficulty recruiting doctors to oversee executions because of the medical profession's objections.

Some of those issues are likely to play out at a hearing in state court this week on a Florida Corrections Department plan aimed at avoiding another botched execution like the one last December of Angel Diaz.

A judge last month ordered the state to update its lethal injection protocol in light of the Diaz case. Diaz, who killed a Miami topless bar manager during a 1979 robbery, took 34 minutes to die — more than double the normal time — and needed an extra dose of drugs because the executioners mistakenly pushed the needles clear through his veins into his flesh.

The state is proposing to add more doctors, nurses, phlebotomists (people trained to draw blood) and other medical professionals to its lethal injection teams — something that is already done in some other states.

Under Florida's proposal, the doctors could be used to insert the intravenous lines and keep them flowing. A doctor or pharmacist would be responsible for buying and mixing the lethal chemicals.

However, department officials told The Associated Press that even though the plan allows greater participation, the doctors would still be used only to pronounce death.

The whole idea is offensive to the AMA.

"We are a profession dedicated to healing. Participation in an execution is an image of a physician with a dark hood," said Dr. Mark Levine, chairman of the AMA's Council of Ethical and Judicial Affairs.

Levine said doctors participating in executions must decide if they are "an instrument of the state or a member of a profession dedicated to preserving and protecting life. You can't be both."

The AMA and other medical groups can revoke membership for ethics violations, but they have no licensing authority in Florida or anywhere else. And membership in the AMA is not required to practice medicine.

But because of those objections, doctors at Florida executions wear plastic moon suits, similar to those used by hazardous materials teams, that cover them from head to toe. Goggles worn beneath the clear plastic face shield conceal the doctor's identity even further.

Florida has 381 men awaiting execution. Next up is Mark Dean Schwab, scheduled to die Nov. 15 for the 1992 kidnapping, rape and murder of a child.

Thirty-seven of the 38 states with capital punishment have adopted lethal injection. (Nebraska still uses the electric chair.) Many states use doctors and other medical professionals, though their duties vary.

Some, like Texas, have the doctor simply pronounce death. But Tennessee allows doctors to cut open an arm or a leg to find a suitable vein. Many use doctors because a court has ordered them to. In North Carolina, a debate over whether a doctor must monitor an inmate's level of consciousness has stopped executions.

In any case, most states try to shield the doctor's identity.

Missouri recently passed a law that will allow executioners to sue anyone who discloses their identity. That came after a St. Louis newspaper revealed the name of a doctor who had participated in dozens of executions. It reported that he had been sued more than 20 times for malpractice.

The doctor also said that he was dyslexic and occasionally altered the amount of anesthetic given to inmates.

Missouri officials said that without the law, it would be difficult to find a doctor with the expertise in anesthesia to assist in executions, as a federal judge there has demanded.

In Alabama and Ohio, a curtain is drawn after the execution so the doctor cannot be seen by the witnesses.

Bill Allen, a professor of bioethics in the University of Florida's College of Medicine, said he is not sure there is a solution that will satisfy those who want physicians barred from death chambers, because "doctors and medical professionals are the best trained to perform the functions to carry out a lethal injection."

TALLAHASSEE, Fla. -- Child killer and rapist Mark Dean Schwab on Thursday asked the Florida Supreme Court to block his November execution, the first set in Florida since a botched lethal injection more than eight months ago.

Gov. Charlie Crist ended a moratorium on executions in July when he signed a death warrant for Schwab, 36. His execution date is Nov. 15.

The Supreme Court also Thursday unanimously sustained death sentences for two other convicted killers, but neither is facing imminent execution. One is Billy Leon Kearse, 34, who fatally shot Fort Pierce police officer Danny Parrish during a traffic stop in 1991.

The justices also upheld the death sentence of prison poet Stephen Todd Booker, who will turn 54 Saturday. Booker, whose work has appeared in several respected literary publications, raped and fatally stabbed 94-year-old Lorine Demoss Harmon in her Gainesville Apartment in 1977.

Florida had stopped executing prisoners after it took 34 minutes -- twice as long as normal -- for Angel Diaz, 55, to die on Dec. 13. An investigation showed needles had been pushed through Diaz's veins into the flesh of his arms, reducing the effectiveness of three chemicals used in the lethal injection process.

The Department of Corrections has modified it's procedures including improved staffing and training, but death penalty opponents argue they remain insufficient to prevent inmates from suffering painful deaths.

Schwab's lawyers plan to raise that issue in his appeal of an Aug. 17 decision by Circuit Judge Charles Holcomb, who denied a motion to stay or vacate his death warrant. Defense lawyers also argued that new evidence shows Schwab suffered from brain impairment that made the death sentence unconstitutional.

The Supreme Court has tentatively set oral argument for Oct. 11 in Schwab's appeal and another lethal injection challenge from death row inmate Ian Deco Lightbourne, who was convicted of killing Nancy O'Farrell in 1981 after breaking into her Marion County home.

Lightbourne's case, based on what happened to Diaz, is awaiting a decision by a circuit judge in Ocala.

The Supreme Court rejected Kearse's post-conviction appeal, which previously had been denied by a trial judge. It's the third time the high court has ruled in his case. The justices in 1995 vacated his initial death sentence. After he was resentenced, they voted 4-3 to sustain it in 2000.

Kearse also challenged the lethal injection procedure. The justices rejected those claims but noted they did not consider new issues that may be raised in Lightbourne's case or any subsequent challenge by Kearse.

WASHINGTON: Since capital punishment was reinstated in the United States three decades ago, 124 people awaiting execution have been exonerated. For some prisoners, the appeals process provided time to prove their innocence.

Now a move by the government to speed up appeals has alarmed death penalty opponents, and even some supporters, who worry that innocent people could be put to death.

The unease involves a new law that would give the U.S. attorney general, instead of judges, the power to shorten some deadlines for appeals if programs are established to ensure convicts get competent lawyers.

Supporters of the law argue that families of victims suffer when executions are delayed, because they have to wait for perpetrators to face justice. Proponents also say that the long wait between sentencing and execution blunts the deterrent effect they believe makes criminals think twice before murdering.

"These cases are being reconsidered in a lot more detail than they need to be," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a victims' rights group based in California. "Justice can't take this long."

Some lawmakers, defense lawyers and human rights groups believe the attorney general, as the supervisor of U.S. prosecutors, should not be made responsible for ensuring the rights of convicts.

Some of these opponents hope Monday's resignation of Attorney General Alberto Gonzales could provide an opportunity to alter or repeal the law.

The law, approved last year but not yet implemented, would affect only appeals in state courts, which try most death penalty cases. Thirty-eight of 50 U.S. states allow the death penalty, though some have suspended executions. While polls show most Americans favor capital punishment, support has been eroding amid reports of injustices.

Among the concerns, some death row convicts have lost their chances to appeal because of mistakes by state-appointed lawyers. Last year, the American Civil Liberties Union documented 16 death penalty cases in Florida alone, where lawyers missed deadlines.

Critics of the law say that moving up deadlines without guaranteeing that defendants have competent lawyers would be reckless.

Death-row inmates spend an average of 10.5 years in the legal system before execution, according to the Death Penalty Information Center, a research group that opposes capital punishment. The 124 people who were exonerated spent an average of 9.2 years to overturn their sentences, the center says.

"If you speed it up, you are going to make more mistakes and execute innocent people," said Brian Evans of Amnesty International.

The chairman of the Senate Judiciary Committee, Democrat Patrick Leahy, recently told The Associated Press that he would use hearings to expose the law's problems and push to repeal it. He could have an opportunity to raise the issue when his panel holds confirmation hearings for nominees to replace Gonzales and for other vacant senior Justice Department posts.

Although the law has been passed, the Justice Department has not finished writing the rules needed to implement it. Nevertheless, a published draft of those rules already has heightened concerns.

On Monday, the American Bar Association, the U.S. legal profession's largest association, called the rules "deeply and fundamentally flawed" for not ensuring that convicts have competent attorneys.

"The rules open the scary possibility that the states are going to wave their arms, and the Department of Justice is just going to let them speed appeals," said Robert Litt, a criminal defense lawyer who helped write the ABA comments.

A Justice Department spokesman, Erik Ablin, would not comment on the ABA's criticism but said the department would consider it before completing its rules.

States were given the opportunity to try to speed appeals under a 1996 law. But they have been unable to take advantage of the law because federal judges have repeatedly found that states did not provide sufficient legal protections to defendants.

"Now instead of making states do better, you are changing who decides," said Richard Dieter, executive director of the Death Penalty Information Center.

Bruce Fein, a senior Justice Department official under the late Republican President Ronald Reagan, supports the death penalty. But he agrees that the attorney general should not have this power to shorten appeal deadlines.

"Judges — since it's their business — pay attention to the law," he said. "But the motivation of an attorney general in making this decision could be: 'Let's show that we are tough on criminals.'"

WASHINGTON, D.C. -- The American Bar Association is taking issue withproposed regulations to implement a statute that offers states a drasticallystreamlined habeas corpus review in death penalty cases in exchange forimprovements in their post-conviction defense process. In comments filedAug. 25 with the Department of Justice, the ABA said the proposed ruleignores key parts of the authorizing legislation and fails to follow whatCongress outlined.

"At its core, the proposed rule fails to abide by this compromise and wouldallow states to obtain streamlined review without ensuring that capitaldefendants receive competent counsel" in post-conviction proceedings, theABA comments stated.

The ABA filed the comments in response to proposed rulemaking regarding theCertification Process for State Capital Systems. The association's concernsincluded what it believes is a disregard for significant aspects of theimplementing legislation. Specifically, the ABA said the rules as proposedraise a number of deep concerns, because they:

- Could result in the appointment of any counsel, rather thanexpressly calling for competent counsel to represent capital defendants intheir appeals.

- Ignore statutory requirements that make it clear whichdefendants would face streamlined review.

- Fail to establish uniform standards for states seekingcertification.

- Allow for ex parte communications between the attorney generaland the state applicant, and fail to provide for public scrutiny of publicapplication claims.

- Create a "content-free" application process for states.

- Lack safeguards that enable state decertification.

"The proposed rule proscribes no content for a state application other thanan 'attestation' that the applicant is an 'appropriate state official' andan 'affirmation' that the state has provided notice of the request to thechief justice of the state's highest court," the ABA comments noted. "Byopting to fail to specify the requirements of the application, the JusticeDepartment has proposed an unworkable mechanism that will result inarbitrary and capricious agency action. At a minimum, the proposed ruleshould require the state applicant to proffer some evidence that the state'smechanism actually results in the appointment of competent post-convictioncounsel to indigent capital defendants (such as a list of the proposed namesof qualified attorneys who are eligible to be appointed), the standards ofcompetency for the appointment of counsel (so that the standards forselection of eligible counsel are clear), and the mechanism for compensationand expense reimbursement for counsel."

The association also recommended that the ABA's Guidelines for theAppointment and Performance of Counsel in Death Penalty Cases beincorporated into the evaluation process in order to add objectivity to theprocess.

Lightbourne attorneys will attack execution protocol

DOC officials could be called as witnesses

BY MABEL PEREZSTAR-BANNER

OCALA - Attorneys for convicted murderer Ian Lightbourne will continue to attack the Department of Corrections about the state's lethal injection procedure today during the last week of hearings prompted by the botched Angel Diaz execution.

The hearings, which are scheduled to last through Friday in Ocala, will look at the updated lethal injection manual to determine whether enough changes were made to avoid problems in future executions.

"CCR's job is to attack the changes in the protocol. ... and that those changes aren't enough to protect from another botched execution," said Assistant State Attorney Rock Hooker Monday, referring to the Capital Collateral Regional Counsel's office that represents dozens of death row inmates.

Dozens of DOC officials involved in the lethal injection process were subpoenaed, along with medical professionals. It is not clear which witnesses will be called today, but Hooker said he expected DOC officials to be asked about execution procedure in light of the recently updated protocols.

The litigation is the result of the December 2006 execution of Diaz. It took 34 minutes - twice as long as normal - for Diaz, 55, to die after an unusual second injection of the three chemicals used in the procedure. Then-Gov. Jeb Bush suspended all Florida executions later that month after a medical examiner said prison officials botched the insertion of the needles.

Last month, 5th Circuit Judge Carven Angel, of Ocala, ordered DOC officials to rewrite portions of Florida's execution protocol manual. Angel criticized the vague nature of the manual and asked officials to spell out detailed information about the execution team, its members and their training, among other items.

Those updates are the items that will be addressed this week. CCR attorneys will argue those changes don't guarantee another execution like Diaz's will occur.

Attorneys for CCR could not be reached for comment.

Hooker said DOC officials are trying to ensure against another botched execution.

"What happened in Diaz is not good," Hooker said. "There were mistakes and it was bad ... And DOC is making sure that it doesn't happen again."

A day after the Diaz execution, the CCR office, which represents dozens of death row inmates, filed petitions on behalf of all their clients claiming the penalty was cruel and unusual. The same day, on Dec. 14, the court chose the Lightbourne case to argue the issue.

Last month, Gov. Charlie Crist cleared way for Florida executions to resume. He signed a death warrant for Mark Schwab. Schwab, 38, was sentenced to death in 1992. He kidnapped, raped and killed 11-year-old Junny Rios-Martinez, of Cocoa, by smothering or choking the boy. Lightbourne, 47, was sentenced to death in 1981 for the murder of Marion County horse breeder Nancy O'Farrell, the daughter of a prominent horse farming family.

Schwab is scheduled to die in November. The Supreme Court will hear arguments in the Schwab and Lightbourne cases in October.

Angel is expected to rule in September on whether the current execution method is "cruel and unusual." His ruling will be forwarded to the Supreme Court who will study Ocala hearing transcripts and hold a hearing of its own.

Family members and supporters of Kenneth Foster, Jr. are jubilant in thereaction to Texas Governor Rick Perry's today's announcement today that hewould commute the death sentence of Kenneth Foster, who was convicted underthe controversial "Law of Parties" for a 1996 murder in which he had noactual involvement. The Board of Pardons and Paroles had recommened clemencyby a vote of 6-1. Foster's execution had been scheduled for tonight.

In a statement announcing the commutation, Perry said, "I am concerned aboutTexas law that allowed capital murder defendants to be tried simultaneouslyand it is an issue I think the Legislature should examine."

Reaction among Foster's family and friends included both joy and disbelief.“We felt a bit of disbelief because Perry’s decision was so unprecedented.”said Dana Cloud of the Save Kenneth Foster campaign. “But everyone is sohappy that Kenneth will be able to touch his wife and daughter and that wehave a chance of seeing him free. Anything is possible when you are alive.”

Claire Dube, a close high-school friend of Kenneth’s and an active member ofthe Save Kenneth Foster Campaign, broke into tears when she heard the news.“We don’t even know what to say. It’s incredible.”

Keith Hampton, Foster’s attorney, also expressed relief and happiness atwinning his client’s life. Hampton thanked the activists of the grassrootsmovement that started in Austin and spread around the world for putting thenecessary pressure on the Board and the Governor to win. “Extra-legal meanswork,” he said.

“Governor Perry once said that there was no hue and cry against the deathpenalty in Texas,” commented Lily Hughes of the Campaign to End the DeathPenalty. “Well, here was your hue and cry.”

Foster’s family and other supporters will continue to work to free him fromprison. “It seems like ten years on death row under 23-hour lockdown couldamount to time served for any crime that Kenneth ever committed,” Cloudsaid.

Perry’s decision is historic. Not only has the Board of Pardons and Parolesrarely recommended clemency (by one count, 3 times since 1982), but RickPerry has overseen more executions than any Governor of the State of Texas,including George Bush.

“This case demonstrated to the world just how arbitrary and capriciouscapital punishment is,” Cloud said. “It gives people pause when someone whokilled no one could come this close to being executed.”

“Public sentiment has been turning against capital punishment,” Hughes said.“We’ve seen a lot of states stop executing people. Winning Kenneth’s lifemight be a real turning point in the history of the death penalty in Texas.”

AUSTIN ? Gov. Rick Perry today commuted the death sentence of Kenneth Eugene Foster of San Antonio to life imprisonment after the Texas Board of Pardons and Paroles (TBPP) recommended such action.

On May 6, 1997, Foster was sentenced to death for his role in the 1996 capital murder of Michael LaHood. Foster sought to have his death sentence commuted to a life sentence arguing that he did not shoot the victim, but merely drove the car in which that the actual killer was riding. In addition, Foster was tried along side the actual killer, Maurecio Brown, and the jury that convicted Foster also considered punishment for both him and his co-defendant in the same proceeding.

?After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster?s sentence from the death penalty to life imprisonment,? Gov. Perry said. ?I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine.

The TBPP voted 6-1 to recommend commutation, and the governor signed the commutation papers Thursday morning.

The governor?s action means Foster?s sentence will be commuted to life imprisonment as soon as the Texas Department of Criminal Justice can process this change.

In doing so, Perry accepts a recommendation from the Texas Board of Pardonsand Paroles, which voted 6-1 today to urge the commutation.

Foster had faced execution Thursday night in Huntsville for being thegetaway driver in the 1996 attempted robbery and murder of Michael LaHood inSan Antonio.

Perry didn't have to accept the highly unusual recommendation from theboard, whose members he appoints.

But in a statement issued Thursday, Perry said he believes "the right andjust decision is to commute Foster's sentence from the death penalty to lifeimprisonment.

"

Records show one of Foster's passenger, Mauriceo Brown, demanded LaHood'swallet and car keys and then opened fire when the victim couldn't producethem. Foster was tried with Brown and received the same sentence. Brown wasexecuted last year.

In his statement, Perry said he's "concerned about Texas law that allowedcapital murder defendants to be tried simultaneously." He said he thinks theLegislature should examine that issue.

The getaway driver in a Texas robbery spree that ended in murder is set tobe executed in the US today, drawing anger from critics who say he shouldnot be put to death because he was not the shooter.

Kenneth Foster would join a number of other condemned prisoners executedunder a state statute that makes non-triggermen equally accountable fortheir crimes - including one put to death earlier this year.

“This is a new low for Texas,” said Larry Cox, executive director of AmnestyInternational USA, the human rights organisation that opposes the deathpenalty in all cases. “Allowing his life to be taken is a shockingperversion of the law.”

Foster’s execution would make him the third Texas prisoner executed in asmany days and the 24th this year in America’s most active capital punishmentstate.

Foster acknowledges that he and and his “knucklehead” friends were up to nogood as drove around San Antonio in a rental car and robbed at least fourpeople. The spree turned deadly when one of Foster’s passengers, MauriceoBrown, jumped out of the car, walked up to Michael LaHood, demanded hiswallet and car keys, then opened fire when he could not produce them. LaHooddied instantly.

Foster says he was 80 feet away from the shooting.

“It was wrong,” Foster, 30, said recently from death row. “I don’t want todownplay that. I was wrong for that. I was too much of a follower. I’mstraight up about that.”

“I didn’t kill anybody,” he said. “I screwed up. I went down the wrong path.I fault myself for being in this messed-up system.”

Brown and Foster, tried together, were convicted of capital murder andsentenced to death. Brown, 31, was executed by lethal injection last year.

Kenneth Foster is scheduled to die tonight for a murder everyoneacknowledges he didn't commit. That should be enough to cause everyone inTexas to wonder if maybe we aren't a little too gung-ho in our use of thedeath penalty. Some people believe Foster isn't the first innocent Texan tobe executed.

Foster isn't completely innocent, of course, but he isn't guilty of the Aug.15, 1996, murder of Michael LaHood Jr. in San Antonio. Mauriceo Brown shotLaHood - he later would claim, among other things, it was an accident - andwas executed in Huntsville last year.

On that fateful pre-dawn morning, Foster was driving Brown, Julius Steen andDewayne Dillard around. The four were smoking marijuana and looking forpeople to rob. Already that night, Brown had robbed four people at gunpoint,even though Foster reportedly objected.

Brown believed LaHood had made an obscene gesture at him and Foster beganfollowing LaHood's car. When LaHood, 25, and his girlfriend pulled up atLaHood's home, Brown jumped out of Foster's car to confront him.

LaHood's girlfriend, Mary Patrick, was the only witness to the shooting. Thethree men in Foster's car were some 85 feet away and couldn't see what tookplace between Brown and LaHood.

Brown was wearing a scarf over his face and Patrick admitted she had beendrinking. After the four men in Foster's car were arrested, she initiallypicked Dewayne Dillard out of a lineup, but later switched heridentification to Brown, who later admitted shooting LaHood by accident. Hesaid his .44-caliber pistol went off on its own. Of course. Shot through theeye, LaHood died instantly.

Like many murderers, Brown changed his story numerous times. In court hesaid he fired in self-defense because he thought LaHood had a gun. He latersaid he didn't shoot LaHood at all, claiming it was one of the other men inthe car. At no time, though, did he say Foster knew about the shooting inadvance and participated in any way other than driving the car.

When Foster, then 19, heard the gunshot, he started to drive away, butDillard and Steen convinced him to wait for Brown. After Brown got in thecar, they sped off, deciding to dispose of the weapon. Acting quickly, SanAntonio police stopped the car before the four men could get rid of the gun.

Dillard later was convicted in another murder and was not tried in theLaHood shooting - he says because his testimony contradicted the state'stheory that the four men set out to rob LaHood.

Steen turned state's evidence in exchange for a lighter sentence on theLaHood murder and another one in which he was accused. Steen, like otherwitnesses in other cases, later recanted his courtroom testimony, saying hewas pressured by prosecutors to lie.

Despite repeated efforts of Foster's attorney to have separate trials, Brownand Foster were tried together. Brown was convicted of the murder. Fosteralso was convicted under the state's law of parties, which states thatanyone who participates in the commission of a crime is as guilty as theperson who actually committed the crime. But that assumes that Foster hadadvance knowledge of a planned murder.

He did not. Foster, Steen and Dillard all testified there was no intent tokill LaHood or anyone that night. If Brown had planned to do so beforeconfronting LaHood, he kept it to himself.

Two years ago, U.S. District Judge Royal Fergeson said the state misappliedthe Law of Parties, thus violating Foster's Eighth and 14th Amendmentrights.

That decision was later overturned by the 5th Circuit Court of Appeals.

On Wednesday, former President Jimmy Carter and South African ArchbishopDesmond Tutu filed a friend of the court brief with the U.S. Supreme Court,asking justices to halt Foster's scheduled execution.

If the Supreme Court fails to act, it will be up to Gov. Rick Perry to stepin and stop the execution.

We hope he does so. Mauriceo Brown was the shooter and he acted alone inmurdering Michael LaHood Jr. He paid the price for his actions.

The state contends that, while Foster might not have known that Brown wouldkill LaHood, but he should have.

While Kenneth Foster had knowledge of and, thus, was involved in the earlierrobberies, he did not have any clue what was to transpire when Brownconfronted LaHood. He is not complicit in the murder of LaHood and shouldnot be put to death.

Good Texans on both sides of the issue can argue the merits andappropriateness of the death penalty. Surely, though, we can all agree thatit should be reserved only for those truly guilty of the most heinous crimes- and Kenneth Foster is not.

Although his statement could have been phrased a tad more gently, Gov. RickPerry was on target when he informed the European Union that Texans aren'ttoo concerned about what Europeans think when it comes to his state's use ofthe death penalty.

Calls from South African Archbishop Desmond Tutu and former President JimmyCarter to spare the life of Death Row inmate Kenneth Foster Jr. are likelyto receive similar dismissals.

But Perry and the state Board of Pardons and Paroles should be listening towhat Texans say when it comes to today's scheduled execution by lethalinjection of Foster, who did not fire the gun that ended Michael LaHood'slife that Aug. 15, 1996, night in San Antonio.

Thirteen members of the Texas House petitioned Perry and the board tocommute Foster's sentence to life without parole.

Those voices -- those of legislators who, in the words of their Aug. 23letter, "are responsible for making the laws of the State of Texas" and"also assume responsibility for protecting our system of justice frommistakes" -- argued that the execution of Foster "is just wrong."

No one who has read the case file can argue that Foster is a completeinnocent. He was driving the car that carried the triggerman, MauriceoBrown, who was executed in 2006 for killing LaHood. Foster was presentearlier in the evening when Brown and two other men committed two robberies.

Prosecutors in this case used the state's "law of parties" statutes to holdFoster criminally responsible for the actions of another. Under Section7.02(b) of the state penal code, if two or more "conspirators" agree tocommit a crime and in the process commit another, each conspirator is guiltyof the crime committed if the crime was "one that should have beenanticipated."

Foster deserves to spend a long, long time -- if not the rest of his life --behind bars for what he did do that night. But he does not deserve to die --not today, not at the hands of a state executioner.

Imagine how haunting it must be to know your life has an expiration date.Especially when it's dated by the power vested in the State of Texas aspunishment for a crime; a crime you weren't sure you committed.

That's reality for Kenneth Foster, the 31-year-old man on death row who willbe executed on Aug. 30 for his involvement in a 1996 murder in San Antonio.Foster, who was 19 at the time, drove a rental car toward downtown SanAntonio with three friends, Julius Steen, Mauriceo Brown and Dwayne Dillard.According to a story in the Austin Chronicle, which detailed that night andthe crime moment-by-moment, the four men were club hopping and really didn'tknow each other all that well. After getting lost, they ended up in a darkneighborhood and stopped at a house, getting into an altercation with awoman who thought they were following her and her companion. Brown got outof the car and followed the woman. As they sat in the car, the three heard agunshot - and Foster sped off as an impulse. He only stopped for Brown toget back into the car.

Michael LaHood Jr., the woman's boyfriend, was shot and killed. Foster,Brown, Steen and Dillard were arrested and indicted. Prosecutors, then,sought the death penalty for Brown and Foster. There's no dispute that Brownshot and killed LaHood - in fact, his attorney argued the shooting was donein self-defense. Still, prosecutors persisted with Foster and their questfor the death penalty under what's known as the "law of parties." Created in1974 and existing only in Texas, the "law of parties" (Section 7.02 of theTexas Penal Code) is a statutory procedure where accessories, such as Brownin this case, can be held just as responsible for a crime as the person whoactually committed it.

Ergo, Kenneth Foster is facing the death penalty for essentially being inthe wrong place at the wrong time.

We will never really know exactly what happened that night in San Antonio.We don't know what those four men were up to, whether it was mischievous orinnocuous, as they claim. We cannot get inside the head of the prosecutorswho pursued the "law of parties" in this case and see why they sought it.Nor do we know if such a drastic measure was used because LaHood was the sonof a prominent San Antonio attorney. But a man losing his life with suchclouds of doubt is the ultimate miscarriage of justice.

Texas already has a reputation for liberally using the death penalty. Sinceexecution was instituted in 1982, 400 death row inmates have been executedeither by the electric chair or lethal injection. And it's concerning tothink that some of them could have been executed for, "acting with intent topromote or assist the commission of the offense he solicits, encourages,directs, aids or attempts to aid the other persons to commit the offense,"the definition of the "law of parties" in the Texas Penal Code.

By definition, the "law of parties" is extremely broad, allowing prosecutorsto just prove the defendant was there and, in some way, provide assistanceto the primary offender - even if unintentional.

While many Texans take pride - or sadistic pleasure, for some - in beingsyringe happy in arbitrarily executing inmates, Foster's story is anotherreason why this state must reexamine capital punishment. In this system ofjustice, mere humans take on the abilities of God; juries decide whethertheir peer should be killed for his or her crimes and the governor, at theend of the line, has the hand of a god, allowing the execution to proceed.

If you need a less homiletic reason, look at the numbers. In 2005, forexample, more inmates were removed from death row than were executed. Therewere 446 inmates on death row at the beginning of 2005 - 19 were executed,31 were removed. By removal, that meant those individuals were taken offdeath row for reasons such as overturned convictions, sentence reductions,commutations or pardons.

Such mistakes happen because the foundation of our judicial system ispeople. That is both the blessing and the curse of American justice:defendants face a jury of their peers with the prosecutors having to meet aburden of proof. Even though, human beings are imperfect. Hence, errors canbe made - including in cases were a defendant's life hangs in the balance.

Though he was tried before a jury of his peers, the burden the prosecutorshad to meet was proving Foster was driving the car after Brown committedmurder. The debate, though, isn't whether or not Foster was there, but ifbeing behind the wheel of that car is worth his life. And, in the misguidedperspective of prosecutors in Bexar County, it is.

Unless Rick Perry, as god-and-governor, steps in to halt the execution,Foster will be executed for being an accidental accomplice. Thus, injusticeprevails.

The vote from the seven-member board was 6-1. The announcement cameless than seven hours before Foster was scheduled to be taken to thedeath chamber for lethal injection.

Perry does not have to accept the highly unusual recommendation fromthe board whose members he appoints.

There was no immediate response from the governor's office.

Foster was the getaway driver and not the actual shooter in the slayingof a 25-year-old man in San Antonio 11 years ago.

Foster acknowledged he and his friends were up to no good as he drovethem around San Antonio in a rental car and robbed at least four people11 years ago before the slaying of Michael LaHood Jr.

"It was wrong," Foster, 30, said recently from death row. "I don't wantto downplay that. I was wrong for that. I was too much of a follower.I'm straight up about that."

Their robbery spree, while they were all high on alcohol and marijuana,turned deadly when Foster followed LaHood and his girlfriend toLaHood's home about 2 a.m. Aug. 15, 1996. One of Foster's passengers,Mauriceo Brown, jumped out, walked up to LaHood, demanded his walletand car keys, then opened fire when LaHood, 25, couldn't produce them.LaHood, shot through the eye, died instantly.

Brown ran back to Foster's car and they sped away. Less than an hourlater, Foster was pulled over for speeding and driving erratically.Foster, Brown, Dwayne Dillard and Julius Steen ? all on probation andmembers of a street gang they called the Hoover 94 Crips ? werearrested for LaHood's slaying.

Brown and Foster, tried together, were convicted of capital murder andsentenced to death. Foster was set to die 13 months after Brown, 31,was strapped to the same death chamber gurney in Huntsville for lethalinjection.

Foster's execution would make him the third Texas prisoner executed inas many days and the 24th this year in the nation's most active capitalpunishment state. On Wednesday evening, John Joe Amador, 32, was put todeath for the slaying of a San Antonio taxi driver 13 1/2 years ago.

Foster's scheduled execution piqued death penalty opponents whocriticized his conviction and sentence under Texas' law of parties,which makes non-triggermen equally accountable for the crime. Fosterwould join a number of other condemned prisoners executed under thestatute, including one put to death earlier this year.

"This is a new low for Texas," said Larry Cox, executive director ofAmnesty International USA, a human rights organization that opposes thedeath penalty in all cases. "Allowing his life to be taken is ashocking perversion of the law."

Foster's lawyers were arguing in the courts that statements fromDillard and Steen, who were in Foster's car that night, clarify andprovide new evidence that support Foster when he says he didn't knowBrown was going to try to rob and shoot LaHood.

"I didn't kill anybody," Foster insisted from death row. "I screwed up.I went down the wrong path. I fault myself for being in this messed-upsystem."

Foster said he was some 80 feet away from the shooting.

"It's hard for you to anticipate how Brown is going to react," Fostersaid. "Texas is saying flat out: You should have known better.

"In life, we have hindsight. Texas is saying you better have foresight.They're saying you better be psychic."

Dillard now is serving life for killing a taxi driver across the streetfrom the Alamo two weeks before LaHood's slaying. Steen testified atBrown's trial and received a life sentence in a plea bargain.

Brown testified at his trial the shooting was in self-defense, that hebelieved LaHood had a gun. Authorities, however, never found anotherweapon near LaHood's body. Foster did not testify.

"I thought what (Brown) said was good enough," he said from death row.

Mike Ramos, among the Bexar County prosecutors handling the case whenit went to trial, said he found Foster's claims unbelievable and wasirritated by a publicity effort to spare Foster.

"When you let somebody out of your car with a loaded handgun, what doyou expect?" Ramos said. "If he didn't realize it could happen, I thinkhe's a liar."

Last weekend a group of Foster supporters picketed outside an Austinchurch Gov. Rick Perry attends.

Ramos said it was clear to him that Foster was "the puppet masterpulling all the strings" during the robbery spree.

Nico LaHood, whose brother was killed, said Wednesday he was frustratedthat people were willing to believe only Foster's story, which hecalled "ridiculous and not true."

"I don't know what dynamics are going on that allow us to make theperson who is the wrongdoer to become the victim in this case," LaHoodsaid. His brother, he said, was being "lost in the whole thing."

On Wednesday, Amador asked for forgiveness for himself and peace "forpeople seeking revenge toward me," then was put to death for the fatalshooting of San Antonio taxi driver Mohammad Reza Ayari.

Another execution, the first of five scheduled for September in Texas,is set for next week when South Carolina native Tony Roach facesinjection Wednesday for the strangling of an Amarillo woman, RonnieDawn Hewitt, 37, during a burglary of her apartment nine years ago.

The vote from the seven-member board was 6-1. The announcement came lessthan seven hours before Foster was scheduled to be taken to the deathchamber for lethal injection.

Perry does not have to accept the highly unusual recommendation from theboard whose members he appoints.

There was no immediate response from the governor's office.

Foster was the getaway driver and not the actual shooter in the slaying of a25-year-old man in San Antonio 11 years ago.

Foster acknowledged he and his friends were up to no good as he drove themaround San Antonio in a rental car and robbed at least four people 11 yearsago before the slaying of Michael LaHood Jr.

"It was wrong," Foster, 30, said recently from death row. "I don't want todownplay that. I was wrong for that. I was too much of a follower. I'mstraight up about that."

Their robbery spree, while they were all high on alcohol and marijuana,turned deadly when Foster followed LaHood and his girlfriend to LaHood'shome about 2 a.m. Aug. 15, 1996. One of Foster's passengers, Mauriceo Brown,jumped out, walked up to LaHood, demanded his wallet and car keys, thenopened fire when LaHood, 25, couldn't produce them. LaHood, shot through theeye, died instantly.

Brown ran back to Foster's car and they sped away. Less than an hour later,Foster was pulled over for speeding and driving erratically. Foster, Brown,Dwayne Dillard and Julius Steen - all on probation and members of a streetgang they called the Hoover 94 Crips - were arrested for LaHood's slaying.

Brown and Foster, tried together, were convicted of capital murder andsentenced to death. Foster was set to die 13 months after Brown, 31, wasstrapped to the same death chamber gurney in Huntsville for lethalinjection.

Foster's execution would make him the third Texas prisoner executed in asmany days and the 24th this year in the nation's most active capitalpunishment state. On Wednesday evening, John Joe Amador, 32, was put todeath for the slaying of a San Antonio taxi driver 13 1/2 years ago.

Foster's scheduled execution piqued death penalty opponents who criticizedhis conviction and sentence under Texas' law of parties, which makesnon-triggermen equally accountable for the crime. Foster would join a numberof other condemned prisoners executed under the statute, including one putto death earlier this year.

"This is a new low for Texas," said Larry Cox, executive director of AmnestyInternational USA, a human rights organization that opposes the deathpenalty in all cases. "Allowing his life to be taken is a shockingperversion of the law."

Foster's lawyers were arguing in the courts that statements from Dillard andSteen, who were in Foster's car that night, clarify and provide new evidencethat support Foster when he says he didn't know Brown was going to try torob and shoot LaHood.

"I didn't kill anybody," Foster insisted from death row. "I screwed up. Iwent down the wrong path. I fault myself for being in this messed-upsystem."

Foster said he was some 80 feet away from the shooting.

"It's hard for you to anticipate how Brown is going to react," Foster said."Texas is saying flat out: You should have known better.

"In life, we have hindsight. Texas is saying you better have foresight.They're saying you better be psychic."

Dillard now is serving life for killing a taxi driver across the street fromthe Alamo two weeks before LaHood's slaying. Steen testified at Brown'strial and received a life sentence in a plea bargain.

Brown testified at his trial the shooting was in self-defense, that hebelieved LaHood had a gun. Authorities, however, never found another weaponnear LaHood's body. Foster did not testify.

"I thought what (Brown) said was good enough," he said from death row.

Mike Ramos, among the Bexar County prosecutors handling the case when itwent to trial, said he found Foster's claims unbelievable and was irritatedby a publicity effort to spare Foster.

"When you let somebody out of your car with a loaded handgun, what do youexpect?" Ramos said. "If he didn't realize it could happen, I think he's aliar."

Last weekend a group of Foster supporters picketed outside an Austin churchGov. Rick Perry attends.

Ramos said it was clear to him that Foster was "the puppet master pullingall the strings" during the robbery spree.

Nico LaHood, whose brother was killed, said Wednesday he was frustrated thatpeople were willing to believe only Foster's story, which he called"ridiculous and not true."

"I don't know what dynamics are going on that allow us to make the personwho is the wrongdoer to become the victim in this case," LaHood said. Hisbrother, he said, was being "lost in the whole thing."

On Wednesday, Amador asked for forgiveness for himself and peace "for peopleseeking revenge toward me," then was put to death for the fatal shooting ofSan Antonio taxi driver Mohammad Reza Ayari.

Another execution, the first of five scheduled for September in Texas, isset for next week when South Carolina native Tony Roach faces injectionWednesday for the strangling of an Amarillo woman, Ronnie Dawn Hewitt, 37,during a burglary of her apartment nine years ago.

The Board of Pardons and Paroles was supposed to make a decision by 1 p.m.on the commutation of Kenneth Foster's death sentence Wednesday, but noresolution was reached by day's end.

In 1997 Foster, then 19, was given the death penalty under Texas' "law ofparties," which sentences to death accomplices in murder cases. MauriceoBrown, a passenger in Foster's car, shot and killed Michael LaHood in 1996,but Foster was nearly 90 feet from Brown during the shooting.

"But for the night that happened and but for some other influences at aparticularly wrong time in his teenage years Kenneth would have really goneplaces," said Keith Hampton, Foster's attorney.

Foster's mother was a drug addict and prostitute who died of AIDS, and hisfather had a bad drug habit and was in and out of jail, so Foster wasshuffled through a number of foster homes.

Hampton has worked on Foster's case for 11 years and said he's watchedFoster grow, develop and transform into a really wonderful, positive humanbeing.

"Even within the confines of prison Foster can make a real contribution tothe outer world, the free world as they call it," Hampton said. "I think ifhis death sentence were commuted to life he would continue in that growthand really be an asset to our society."

The "law of parties" conspiracy statute was approved in 1989 by the court ofcriminal appeals, and at least 12 inmates on death row have been chargedunder that statute and executed, Hampton said.

Jordan Steiker, a UT law professor and expert in capital punishment, saidit's problematic for people to be sentenced to death under the "law ofparties" as accomplices where their individual culpability does not makethem among the worst of the worst offenders.

"The strongest argument for commutation is that Foster was a less culpableparticipant in the offense," Steiker said.

The death penalty would be excessive for him as an indirect participant, hesaid.

Even though Foster's case has been appealed to the 5th Circuit Court ofAppeals and the U.S. Supreme Court, Steiker said the fact that the courtswould not regard his sentence as constitutionally prohibited should notpreclude the board from granting release. However, that does not mean theywill, he added.

"The constitution sets the out of bounds, the far parameters for excessivepunishment, but it's certainly well within the power of the executive tomake a judgement, an independent judgement, that the death penalty should beenforced in this case," Steiker said.

The board discusses a lot of cases and has so rarely made a recommendationfor commutation of capital cases to Gov. Rick Perry, that it's always a longshot, he said. But, the national attention Foster's case has drawn makes itunique.

"I think that the public outcry in this case separates this case from the[majority] of cases in which there's no public attention at all," Steikersaid. "So I think the board might find political cover in the public concernabout this execution."

Wednesday, 29 August 2007

OCALA - Attorneys for Ian Lightbourne took a field trip this morning to Florida State Prison to view the execution chamber and chemical rooms involved in the lethal injection procedure.

Later this afternoon, lawyers will question witnesses about execution policy, in light of the botched Angel Diaz execution and the recently updated lethal injection manual.

The hearing began at 8 a.m. today in front of Circuit Judge Carven Angel in the Marion County courthouse. For the first two hours, lawyers argued about which witnesses could testify, public records requests and other items related to the background of people on the execution team.

Suzanne Keffer, of the Capital Collateral Regional Office, argued people on the execution team should testify to talk about what really happens in the chamber and what their background is. The team members' identities are protected and have not bee released by DOC.

"We maintain we would still like these people's testimony," Keffer said. "These people are directly responsible, who are directly making those decisions ... and directly involved in the Angel Diaz execution," she said.

Angel ruled CCR can't call those witnesses.

Deputy Attorney General Kenneth Nunnelley appeared annoyed at times. At one point he called CCR's requests "ridiculous."

"How much is enough and what is too much," Nunnelley argued. The prosecutor thinks Lightbourne's lawyers are going overboard in their evidence requests.

"We don't have to look at ... the execution chamber when we have photographs available," he said. Nunnelley criticized CCR for wanting to photograph the area themselves rather than use DOC photos.

Keffer argued that DOC had a specific bias or interest and they wanted to photograph the area themselves.

Angel sided with defense lawyers, stating attorneys had a right to view the area and photograph it in light of the serious nature of the case.

"Everyone takes photos in an automobile case. I don't know how to not allow that in a death penalty case," the judge said.

Still, DOC officials felt attorneys taking photographs created security problems and instead offered to take photographs for the private lawyers at their request. The lawyers who requested to take photographs are the same lawyers who regularly visit their clients on death row.

Last month, Angel ordered DOC officials to rewrite portions of Florida's execution protocol manual. Angel criticized the vague nature of the manual and asked officials to spell out detailed information about the execution team, its members and their training, among other items.

Those updates will be addressed this week.

A day after the Diaz execution, the CCR office, which represents dozens of death row inmates, filed petitions on behalf of all their clients claiming the penalty was cruel and unusual. The same day, Dec. 14, the court chose the Lightbourne case to argue the issue.

It took Diaz, 34 minutes to die after an unusual second dose of chemicals. Then-Gov. Jeb Bush suspended all Florida executions later that month after a medical examiner said prison officials botched the insertion of the needles.

Last month, Gov. Charlie Crist cleared the way for Florida executions to resume. He signed a death warrant for Mark Schwab. Schwab, 38, was sentenced to death in 1992. He kidnapped, raped and killed 11-year-old Junny Rios-Martinez, of Cocoa, by smothering or choking the boy.

OCALA - Attorneys for Ian Lightbourne took a field trip Tuesday to Florida State Prison to view the execution chamber and chemical rooms involved in the lethal injection procedure.

Today, they will question warden Timothy Cannon, the warden in charge of future executions, about protocols and policy in light of the botched Angel Diaz execution and the recently updated lethal injection manual.

The hearing begins at 8:15 a.m. in front of Circuit Judge Carven Angel in the Marion County Courthouse and will last through Friday. Deputy Attorney General Kenneth Nunnelley will also have a chance to present witnesses.

In September, Angel is expected to rule whether Florida's current execution procedure is "cruel and unusual." Last month, the judge ordered the Department of Corrections to rewrite portions of its manual and to specifically detail the role of each execution team member.

In December, it took Angel Diaz 34 minutes to die after an unusual second dose of chemicals. Then-Gov. Jeb Bush suspended all Florida executions later that month after a medical examiner said prison officials botched the insertion of the needles.

The botched execution prompted officials to look at the execution procedures and also caused the Capital Collateral Regional Office, which represents dozens of death row inmates, to file petitions on behalf of all its clients claiming the penalty was cruel and unusual. The same day, Dec. 14, the Supreme Court chose the Lightbourne case to examine on this issue.

The Ocala judge must make a ruling on the execution issue by September. Angel's ruling will come just two months before the first scheduled execution. The Supreme Court wants to review Angel's ruling, court transcripts and other testimony from the Ocala hearings.

Last month, Gov. Charlie Crist signed a death warrant for Mark Schwab, 38, who was sentenced to death in 1992 for the kidnapping, rape and murder of an 11-year-old child.

Lightbourne, 47, was sentenced to death in 1981 for the murder of Marion County horse breeder Nancy O'Farrell, the daughter of a prominent horse farming family.

Schwab is scheduled to die in November. The Supreme Court will hear arguments in the Schwab and Lightbourne cases in October.

Tuesday, CCR lawyers argued about which witnesses could testify, public records requests and other items related to the background of people on the execution team.

Suzanne Keffer, of CCR, argued that people on the execution team should testify to talk about what happens in the chamber and their backgrounds.

"These people are directly responsible, who are directly making those decisions .Ê.Ê. and directly involved in the Angel Diaz execution," Keffer said.

Angel ruled that CCR can't call those witnesses.

Deputy Attorney General Kenneth Nunnelley appeared annoyed at times. At one point he called CCR's requests "ridiculous." The prosecutor thinks Lightbourne's lawyers are going overboard in their evidence requests.

"We don't have to look at .Ê.Ê. the execution chamber when we have photographs available," he said. Nunnelley criticized CCR for wanting to photograph the area themselves rather than use DOC photos.

Keffer argued that DOC had a specific bias or interest.

Angel sided with the defense. Still, DOC officials felt attorneys taking photographs created security problems and instead offered to take photographs for the private lawyers at their request. The lawyers who requested to take photographs are the same lawyers who regularly visit their clients on death row.